LENNOX MITCHELL v. GINA MARTINELLI, RONALD MARTINELLI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4619-04T54619-04T5

LENNOX MITCHELL,

Plaintiff-Appellant,

v.

GINA MARTINELLI, RONALD

MARTINELLI,

Defendants,

and

RAMESHBHAI K. DESAI,

Defendant-Respondent.

 

Argued: March 13, 2006 - Decided August 3, 2006

Before Judges Fall and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket Number MID-L-761-03.

Lennox Mitchell, appellant, argued the cause pro se.

Frank A. Viscomi argued the cause for respondent (Sherman & Viscomi, attorneys; Mr. Viscomi, on the brief).

PER CURIAM

In this automobile negligence personal injury action, plaintiff Lennox Mitchell appeals from an order entered in the Law Division on March 24, 2005, granting summary judgment in favor of defendant Rameshbhai K. Desai, dismissing his complaint. The following factual and procedural history is relevant to our consideration of the arguments advanced on appeal.

This case arises from an automobile accident occurring on February 18, 2001 in North Bergen. Plaintiff was operating his 1984 Toyota vehicle in a southerly direction on Tonnelle Avenue, stopped for a red traffic signal at its intersection with 46th Street. While waiting for the light to turn green, his vehicle was struck from the rear by a vehicle being operated by defendant Ronald M. Martinelli, owned by defendant Gina Martinelli. Both drivers exited their vehicles and an argument ensued.

At or about the time of that accident, defendant Rameshbhai K. Desai was traveling northbound on Tonnnelle Avenue, in the opposite direction, in the left-hand lane, also stopped at the traffic light. He observed two pedestrians standing in the southbound lane arguing. When the traffic light turned green, Desai proceeded into the intersection, when suddenly Ronald Martinelli pushed plaintiff into the northbound lane, causing plaintiff to be struck by the Desai vehicle. In his answers to interrogatories, Desai explained:

On Sunday, February 18, 2001 at around 3:00 p.m., I was going north on Tonnelle Avenue with my three children and two nieces. The weather was sunny. I was stopped at a red traffic light. On the opposite side, I saw two people arguing with each other. The traffic light turned green and I proceeded to go north. As I was passing the place where the two people were arguing, one person suddenly pushed the other person into my driver's side door. The person fell down. I stopped there.

Desai also stated he was traveling at a speed of between 5 and 10 mph when plaintiff hit his driver's side door.

In his deposition, plaintiff stated he took note of the traffic traveling north on Tonnelle Avenue, but that he did not see Desai's vehicle prior to being pushed backwards into it.

Plaintiff filed a complaint in the Law Division against Gina Martinelli, Ronald M. Martinelli, and Rameshbhai K. Desai, seeking damages for personal injuries sustained as a result of the accidents. The claim against the Martinelli defendants was settled for the $100,000 policy limit and, on March 3, 2004, plaintiff signed a written release agreeing to release all claims against them arising from the February 18, 2001 incidents. Plaintiff continued to pursue his personal injury claims against Desai.

Plaintiff incurred significant medical bills due to his hospitalization and treatment at Englewood Hospital, and a judgment was entered against him for associated medical treatment in a Law Division action in the amount of $168,619.34, plus costs and attorney's fees.

Ronald M. Martinelli was ultimately indicted on two counts of aggravated assault. He pled guilty to one count of aggravated assault, and was sentenced to a term of probation.

On August 27, 2004, a substitution of attorney was filed in the personal injury litigation, naming plaintiff as proceeding pro se thereafter. By order entered on September 10, 2004, the action was stayed for a period of ninety days to allow discovery concerning defendants Martinelli. On February 8, 2005, the matter was submitted to arbitration pursuant to R. 4:21A. The arbitrator issued an award on that date, finding defendant Martinelli to be solely liable for the accident that had caused plaintiff's injuries.

On or about February 17, 2005, defendant Desai filed a motion seeking summary judgment dismissing the complaint against him. On or about February 28, 2005, plaintiff filed a motion seeking an order releasing the Hudson County Grand Jury proceedings with respect to the criminal complaint that had been filed against Ronald M. Martinelli. On March 1, 2005, the Hudson County Assignment Judge issued an order permitting release of the pertinent Grand Jury proceedings, and they are part of the record on this appeal.

The summary judgment motion was considered on the papers by Judge Mathias Rodriguez on March 24, 2005. The judge granted summary judgment, dismissing the claim against Desai. In his oral decision, the judge stated in pertinent part:

In this matter there isn't any question that Mr. Martinelli pushed Mr. Lennox Mitchell into the lane of travel of Mr. Desai. There is absolutely no evidence that Mr. Desai did anything improper, that he was driving at an excessive speed or that he failed to make proper observations. There is no way he could have foreseen that Mr. Martinelli was going to commit a crime in pushing Mr. Mitchell into the lane being used by Mr. Desai.

An order memorializing that decision was issued on that date.

On appeal, plaintiff claims the court misapplied its discretion by failing to extend discovery further to allow him an opportunity to depose the Martinelli defendants, and that summary judgment was improperly granted based on existing disputes of facts material to the issue of liability.

After analyzing the record in light of the written and oral arguments advanced by the parties, we affirm substantially for the reasons articulated by Judge Rodriguez. There is insufficient evidence in the record to permit a factfinder to conclude that Desai operated his vehicle in a negligent manner. We add the following.

Plaintiff's contention that the motion judge erred by not considering the grand jury testimony of Lena Sanchez, a person who had witnessed the February 18, 2001 incident, is without merit. Sanchez testified that she did not see plaintiff make contact with Desai's vehicle; her testimony does not support plaintiff's contention that Desai was negligent.

Plaintiff also contends that the trial court erred in failing to extend the time for discovery. We disagree. There was ample time for plaintiff to depose Martinelli, who was sentenced in the criminal matter on August 27, 2004. There is also no support in the record for plaintiff's contention that his attorney was not prepared for Desai's deposition testimony. Therefore, plaintiff's contention that further discovery was warranted lacks merit.

 
Affirmed.

Judge Fall was unable to participate in oral argument, but has listened to a tape of the proceedings conducted on March 13, 2006.

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6

A-4619-04T5

August 3, 2006